Google throws down gauntlet: no more book settlement changes

After the Department of Justice and other groups objected to its initial book …

Yesterday, the parties involved in the Google book settlement made a series of filings, all of which requested that the Amended Settlement Agreement be ratified in its current form. The last time around, when faced with objections from groups ranging from the US Department of Justice to authors, the parties withdrew their initial settlement in order to make the changes that produced the ASA. Now, faced with many of the same objections from the same exact groups, Google and the plaintiffs have decided they've gone as far as they intend to, and will fight for the approval of the ASA.

The plaintiffs' filings largely argue that the ASA meets the needs of the class they represent. As such, their filings focus on the fact that rightsholders will be receiving reasonable payments from Google, and will retain a significant degree of control over the display and sale of the works. In general, these arguments duck the larger legal issues identified by the DoJ and other groups.

Google, in contrast, tackles them head on, but not before reiterating its big-picture take on the settlement: its digitization efforts are the only thing preventing another Library of Alexandria-style tragedy, and making the results available is a public good that should override petty concerns raised by its competitors. "Approval of the settlement will open the virtual doors to the greatest library in history, without costing authors a dime they now receive or are likely to receive if the settlement is not approved," Google's filing reads. "Nor does anyone seriously dispute, though few objectors admit, that to deny the settlement will keep those library doors locked while inviting costly, fragmented litigation that could clog dockets around the country for years."

Google recognizes the outlines of the DoJ's complaints (which were also noted by a number of Google's competitors): there are concerns relating to antitrust and copyright law, and the sweeping solutions go beyond the scope of the violations that prompted the suit. Its lawyers, however, have found a variety of cases that suggest that the ASA is nothing out of the ordinary.

As for the latter issue, the brief cites a case that permits courts to "approve a settlement that 'provides broader relief than the court could have awarded after a trial.'" It also notes that other settlements have included clauses that benefit the defendants, even though it's their alleged violations that triggered the suit. The fact that the settlement absolves Google of some possible future copyright violations is reasonable, it argues, given that those violations are directly related to the ones that spawned the lawsuit.

Google is also unimpressed by the antitrust worries. Its competitors in the book scanning field, like Microsoft and Yahoo, have dropped out—"There is, in other words, no 'competition' to 'eliminate.'" As for the vending of orphaned works, Google notes that it's a new entrant to the field, with essentially no market share in books at all. As such, it can't possibly have monopoly power, and it contends, contrary to the arguments made by others, that it's unlikely to get it.

It argues that the ASA actually promotes competition by calling for Google to create an algorithm that emulates a competitive market. If there's any uncertainty about whether the algorithm might not be a complete success, it certainly doesn't show in this document. That single price/single source model also lowers the transaction costs for everyone involved, which Google contends will have competitive benefits.

The single most important transaction cost, in Google's view, is simply identifying which books are in copyright, and who owns the rights to them. By identifying as many rightsholders as it can, Google argues that it will be assisting others to enter the market, thereby fostering competition. But many of its arguments—that rightholders can back out of the agreement at any time, and that they will be notified of Google's pricing decisions—are predicated on the assumption that either rightsholders can be found, or that the fiduciary proposed by the ASA can adequately represent their interests.

Although the owners of unclaimed works will be represented by a fiduciary, the fact that Google will be given permission to use copyrighted works in the absence of explicit objections came in for a lot of criticism, as it appeared to change licensing of copyrighted works from an opt-in to an opt-out transaction. Google doesn't think that's a big deal, arguing, "Where unanimous consent is infeasible, anticipatory releases can make everyone better off and are well within the court’s power to approve."

Others, including the DoJ, argued that courts actually don't have the power to approve, as copyright law is Congress' domain. Google attempts to rebut that argument by pointing to other cases where settlements addressed items that are normally handled by other branches of the government, such as the Holocaust reparations settlement. In any case, the ASA is promoted as being well within the principles of copyright law, which is intended to promote the availability of creative works.

Clearly, Google's filing is an attempt to make the case for approving its settlement, and there are a few points in which it seems to slip past the objections of its opponents without fully addressing them—for example, the document assumes that a competitive pricing algorithm will be functionally equivalent to a competitive market, something that not everyone is convinced by. Both Google and its opponents are able to cite a significant number of precedents in their favor. It will be up to the presiding judge to sort out which of these citations are more relevant and appropriate.

Nevertheless, there are a couple of things that Google could do that would probably get most of its opponents on board: change the agreement to opt-out, and turn its existing digital archives over to a third party. The fact that Google has decided to fight for the existing ASA shows that it's not interested in either of these solutions, meaning the company definitely wants the rights to orphaned works, and it intends to leverage its digital collection in improving its data analysis capabilities.

57 Reader Comments

<quote>If it was placed into public domain but without a written contract stating so (as is normally the case), does Google by default all of these extra rights?</quote>Under current copyright law, without an explicit declaration otherwise the work is copyrighted and anyone wanting to reuse it requires your permission. Registration of copyright is required only if putting a work in public domain without including that directive in the work. Work that is written distributed and forgotten will remain offlimits to everyone until the copyright expires sometime in the next century. Remember the law states 75yrs after the death of a John Doe whose date of death is unknown and who may have transferred the rights to a corporation who filed and forgot the ownership, even though their right will remain valid indefinitely.

The Google agreement excludes registered copyrights whose owners still exist. Orphan works that are copyright under the current copyrighted unless you tell the gummint otherwise will only be distributable if a distributor is allowed to use the work without the owner's permission. Remember this is an unknown owner who may or may not be alive. If dead the heirs may be unaware that the work exists & the existing version of the work may not include enough information to identify the creator or rightsholder. Failing to provide that information does not invalidate the copyright, it just makes it impossible to copy it legally.

In the J.D. Salinger case, the heirs are well aware of this project and can probably spare 2 or 3 minutes to write a letter denying permission to distribute the work. After the copyright expires or some subsequent heir decides to monetize the work, J.D.Salinger will once again be on the market. Unless all copies are destroyed or Salinger becomes a forgettable author, the work will eventually reappear on the market.

Opt-out permission granted after a due diligence search for rights owners will reveal a lot of forgotten works that the rights holders may want to monetize. The Google request for a decision will give them that chance. For works where the rights holder can no longer be identified, then opt out is the only way to avoid putting the work in the dustbin, to be destroyed and forgotten.

<quote>Agreed, "them or nothing" should never have been the only choice in the first place. The thought that a considerable portion of humankind's cultural heritage falls into the hands of a corporate entity is appalling to me. But I guess a people that cares so little about these parts of their heritage that they'd rather give them up for good than to invest in preserving them themselves doesn't really deserve it any other way.

Privatize away my man, while we still got more stuff to give away.</quote>The big complaint from other distributors seems to be "They thought of it first. Its completely unfair that they should have a head start on digitizing. Make them stop so we can have more books digitized than they do...

Google is not claiming copyright ownership by scanning books. The only thing they own is their copy.of a physical book that was in their possession until it was destroyed by the process used to digitize. Competitors are free to create their own scanned libraries. The Internet Archive and Project Gutenberg have been doing this for years

It's interesting how many 'authors'; in this thread have no idea what google is doing. Hilarious, really. The same ones who benefit greatly from copyright when they author a work are now terrifed they might continue to beneift when the work is no longer published. Yeah, scary stuff there.

Sorry to Mr Salinger (and his estate) but when your copyrights expire, you have no control over the work. That's what 'limited time' means.

The opt-in idea is utterly useless. How does an author who dies in 1912 'opt in' to this?

To me this is simply a valid extension of the aging of works: 1) first you have a valid copyright (google will NOT be touching your works! relax, OK?! stay calm!)

2) (new!) your work is no longer printed, sold, distributed or maintained. It can not be purchased by anyone, anywhere. To the public, it's gone and acn anever be used for anything, or found. The copyright might still be valid, and due to insane copyright extensions it is likely still valid. Google scans the work in, and catalogs it. If they make a mistake, and you are still trying to self publish or whatever you can opt out. No the work is visible to the public again, who may choose to purchase it, ask to use it, maybe even republish it. (how is this bad again?)

3) the work, after eons, goes out of copyright and google, or anyone else can now slice and dice it as they see fit. (note: this does not apply, and will never appy to anything produced by the Walt Disney Corporation)

May authors have a self inflated view of how important their work is, and how vital it is that they maintain strict control of such.I write training manuals and adminsitration guides so I don't have that problem . I only copyright it so for the two years or so the info is current it can get as many butts in training room seats as I can.

My question for the thread is "why don't we pust the date copyrights expire in the work?" Where do the life+50 thing come from? Right now copyright dates as printed in materials are functionally useless. We must assume everything with a copyright is copyrighted forever. For my next book, why cant I just put in there "Copyright (c) expires 2050" and be done with it? We seem to have created a perpetual motion machine with copyrights...

Originally posted by JEDIDIAH:Suppression of publication should simply not be possible. If you don't want to publish your work, then any and all copyrights should be permanently revoked. If you don't want your stuff "out there" then don't put it "out there" to begin with.

What if it finds a way out? What do you do then? No legal recourse?

quote:

Originally posted by maxwell2:The opt-in idea is utterly useless. How does an author who dies in 1912 'opt in' to this?

Any author who died in 1912 already has all their works in the public domain. Hell, most of Robert E. Howard's Conan the Barbarian stuff is already in the public domain (I love me some Wikisource and Project Gutenberg). How would an author who died in 19xx opt in? The same way they'd opt out, I imagine: whomever owns the copyright currently can do it. If nobody alive owns the rights, I guess we're all Shit Outta Luck. But the underlying problem is one of current copyright law, which is not something Google can fix via this settlement. We can't just decide that a law does not apply to a corporation (even Google) just because the law is inconvenient.

The whole issue of "orphaned" works really points back to the real, fundamental problem: copyright is just too damned long.

When a person can author a work at, let's say, the age of 20, lives to the ripe old age of 90, and then the "work" receives another 70 years of protection... W.T.F.? The United States has only existed as a sovereign nation for 233 years, all of 93 years more than my example protection of 140 years. Granted, my example is on the extreme end of possibility, but Salinger himself fits the example almost perfectly. Any advances in prolonging human life will only make the situation worse, to say nothing of the desire of corporations to keep extending the copyright term. Corporate-originated works aren't much better with their 120/95 year terms, which will almost certainly be extended again before Disney's earliest copyrights expire in 2019.

Now, I understand, before anyone replies, that US copyright law isn't this retroactive, but I'll use such retro-activity to put the length of term into perspective. If a work were just now coming out of 140 years of copyright protection, it would have been published in 1870.

In 1870: "John D. Rockefeller and his brother William incorporated the Standard Oil Company of Ohio;" the states of Virgina and Mississippi *re*joined the Union following the Civil War; "the first motion picture was shown to a theater audience in Philadelphia;" and "in France, Karl Marx completed what will become known as his 'First Address.'"

Some major events that occurred in the five years prior to 1870.

In 1865: the United States Civil War ended; Abraham Lincoln was assassinated; the first edition of Alice in Wonderland was published; Mark Twain's first story "The Celebrated Jumping Frog of Calaveras County" was published; Rudyard Kipling, author of the Jungle Book, was born; and Dostoevsky wrote three of his greatest novels between 1865 and 1871.

Laying of the first US-Britain intercontinental telegraph cable occurred in 1866.

In 1867: Karl Marx's "Das Kapital" was published, and Russia formally transferred Alaska to the US.

In 1868: Susan B. Anthony, the suffrage leader, put out the first issue of "The Revolution" in New York City, and Charles Darwin published "The Variation of Plants and Animals Under Domestication."

In 1869: the Union Pacific and Central Pacific railways were joined at Promontory Point, Utah, and Mohandas Karamchad Gandhi was born.

These are just a few of the things that occurred. During those years, many hundreds-- even thousands-- of famous stories, novels, paintings, musical pieces, and other works of art and intellect were produced, to say nothing of the many tens or hundreds of thousands, maybe millions, of lesser known works. Now imagine if they were just *now* coming out of copyright, or had only done so within the past twenty to thirty years.

Even better, now imagine Google's orphaned works project were being applied to that body of material.

*Now* imagine what the world will be like in 100, 125, or even 150 years from now, when works produced this year finally (hopefully) leave copyright.

No more changes? Good, reject it rather than doing this silly dance of "revisions" already.

It's quite clear that even under American law, what Google are doing is unlawful. Their landgrab of foreign authors rights is disgusting, and if it does go through, I plan on writing to my MP to push for a law declaring compulsory licensing of all American authors books as an equivalent measure.

Originally posted by gmerrick:And the same could be said of Microsoft 30 some odd years ago when it introduced DOS, then Windows. What can we do now, to prevent such a massive lock in?

The biggest difference so far is that Microsoft used/uses closed format document, closed protocols, and closed anything else. So you're stuck with them. Google has so far been keeping things open.

You can get your email from them through IMAP or POP, export your docs documents as various open formats, youtube uses flash and mp4 (while not open, those are the standard of our day that many many tools can interoperate with).

I use Outlook to access gmail, and my phone uses some Nokia program to do the same and it has a client for youtube.

Lockin isn't that everyone uses it, it's that you can't get out because your data is locked-in and so far that's not the case with Google.

Well, I don't want to seem like defending Google, they can take good care of themselves, but am I alone in thinking that when coming up with the quoted idea, someone must have been seriously intoxicated (i.e. let them do the work then expect them to hand it over, come on). I think this so-called settlement dispute has been going on way too long, and too many parties have been involved whose concern is more related to envying Google's strategic position (and of course eventual income and monopoly) in this matter, than caring for authors' rights. And it shows from many of the "brilliant" ideas that are popping up from time to time.

Originally posted by ctpmn:These orphaned works going in to what would essentially be a new Quasi-Public Domain would be great for everyone.

Except it isn't a quasi-public domain. It's "Google Domain"; the settlement (if approved) gives Google rights to do things to orphaned works that would be illegal for anyone else to do.

There's no competition currently because no one else had the balls to try to do an end-run around copyright law by doing something illegal and then using a class action settlement to "negotiate" with people who weren't there. There would be no competition in the future because the settlement doesn't change anything for anyone but Google, and there's no guarantee that a prospective competitor would be able to get a comparable settlement instead of getting Napstered out of existence.

What's going on is the rough equivalent of the RIAA performing binding negotiations for all musicians everywhere for all time. The fact that the stated goal (a digital library/bookstore of otherwise unavailable work) is laudable doesn't make that any more morally defensible.

The solution is orphaned works reform in Congress to let anyone, not just Google, build such a library. Not this mess.

How does Google expect a court to uphold a contract or settlement that violates the law? And how did the courts grant the publishers standing in this case, since said publishers don't own the rights to orphan works (otherwise they wouldn't be orphan)? I don't get either part of this. I mean, I like and want what Google wants here...but not like this. It's basically granting one party an exemption from the law based on an agreement with non-stake holders. WTF?As has been said, the right (and only practical) way to do this is to lobby for reform. It'll be hard but it'll be legal.

Originally posted by PaulWTAMU:How does Google expect a court to uphold a contract or settlement that violates the law?

It's not clear whether the settlement does violate the law. There is reason to believe that it's in conflict with certain aspects of US copyright law, but then there is also reason to think that it's not. I think that Google sees it as worth trying, if only because this deal is better than anything else they might get.

Remember also that it was the publishers who sued Google. If the settlement fails, Google can proceed with their defense, and perhaps they'll be found to be engaging in fair use. They might not be found to be engaging in fair use, however, and that trial will cost them much time and money.

That brings us to the question of standing: the publishers have standing to sue because they hold copyrights which Google is allegedly infringing. The arguments for expanding the settlement beyond those directly involved in it are more complicated, but I believe that there is case-law which supports this action.

quote:

PaulWTAMU:As has been said, the right (and only practical) way to do this is to lobby for reform. It'll be hard but it'll be legal.

Unfortunately for all of us, most copyright reform is not especially practical. Orphan works might be dealt with practically. Much more than that you you quickly bump into international treaties and entrenched corporate and political interests which are going to resist any proposed changes.

Unfortunately for all of us, most copyright reform is not especially practical. Orphan works might be dealt with practically. Much more than that you you quickly bump into international treaties and entrenched corporate and political interests which are going to resist any proposed changes.

I don't think the US ever really cares about international treaties unless it's holding other countries to them. The US has a bad record of rejecting things such as UN resolutions when it doesn't like them, but is happy to use them when it comes to holding nations to them. World trade treaties are often in the same boat. So, if America decides it wants to do something new with copyright laws, and I think almost everyone agrees there do need to be changes (what those may be are naturally not something anyone agrees to), then I don't see international agreements as having a major affect on policy.

The truth is that copyright is too long. I think 100 years should be fine, after it was completed, but there should be a process in between the initiation and conclusion of that copyright, and it shouldn't be automatic. Registration should be compulsory as well as renewals every 10-25 years. It should be a simple process, and inexpensive.

A lot of people talk about if the author is dead, so too should the copyright die. The problem with that is if a company buys content from an author, and that author dies the next day, then so would the copyright. As such, the value of the content's copyright would be significantly less. When a company or individual invests in a copyright, it's much the same as investing in a company which has a limited lifespan. If the investment will see a return for 10 years, 20 years, or 100 years, it will alter the value of the merchandise. So, George Orwell's 1984 which surely sells hundreds of thousands, and let's assume 100,000 for the sake of simplicity in my rough model. Let's assume the copyright holder gets $1 per book. That represents $100,000 per year for the life of the copyright. At 10 years, it's worth a million. At 100, it's worth 10 million. That will naturally affect the value of the copyright.

Others have posed that movies make their money in the box office and shouldn't be entitled to DVD sales. But, if you take a look at box office, there are only a few dozen movies at best that manage to even return the investment, let alone post a profit. An example might be a favourite of mine, Emir Kusturica, whose films aren't even represented by the box office statistics, but whose DVDs do see the light of day. On the other hand, we're faced with great libraries of historical import which are difficult if not impossible to access. While it's important to recognize active and visible copyright holder's rights, it's also important to recognize and make available the material which isn't active and the copyright holder is not visible.

As some have said, Google's motives are likely profit. So, my suggestion would be for copyright holders who are missing and unavailable to be reached, their works should be put into a government owned stasis and made available. Money collected from these revenues could be held until the copyright expires and interest from some bond in which the money would be held could be used to pay for a system like this. If no one claims the money, then at the end of the copyright the funds could go directly into government coffers.

will retain a significant degree of control over the display and sale of the works

Well, in spite of what all the anti-copywritists here say, as long as that is 100%, I suppose it's ok. You can whine all you want about Salinger; but as long as it's his; it's also his to control as long as allowed by law. Don't like the law; tough nubs - contact your congressional reps about getting it changed. I doubt they will be at all influenced by your "i don't think it's fair. i don't like it. it's not right. it's way too long please let mother google rule the planet." argument....but have at it.

will retain a significant degree of control over the display and sale of the works

Well, in spite of what all the anti-copywritists here say, as long as that is 100%, I suppose it's ok. You can whine all you want about Salinger; but as long as it's his; it's also his to control as long as allowed by law. Don't like the law; tough nubs - contact your congressional reps about getting it changed. I doubt they will be at all influenced by your "i don't think it's fair. i don't like it. it's not right. it's way too long please let mother google rule the planet." argument....but have at it.